HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tammy Brown
Applicant
-and-
Primary Response Inc.
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Brown v. Primary Response Inc.
WRITTEN SUBMISSIONS
Tammy Brown, Applicant ) On her own behalf
Primary response Inc., Respondent ) Yvonne MacDonald,
) Representative
1This Application for Contravention of Settlement (Form 18), filed on August 12, 2011, pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, (the Code) as amended, alleges that the respondent breached a settlement entered into by the parties with respect to a previous application to the Tribunal. The applicant appended a January 21, 2011 letter from the respondent and signed by the applicant indicating that the parties had reached an agreement settling all outstanding actions for a specific monetary amount.
2The applicant alleges that, as per the parties’ agreement, the respondent was required to provide her with a permanent fulltime position at a certain rate of pay and that the respondent should have better facilitated the renewal of her security guard licence.
3The respondent filed a Response to an Application for Contravention of Settlement (Form 19) on September 20, 2011. The Response indicates that, while it is correct that the parties reached an agreement on January 21, 2011, there was no term of settlement between the parties with respect to maintaining the applicant in a permanent position and particularly so without a valid licence which the respondent submits was the applicant’s responsibility to secure in a timely fashion.
4By way of Case Assessment Direction dated October 13, 2011, the Tribunal noted that the applicant’s narrative indicates that the agreement was in the form of verbal assurances and that the applicant did not provide any documentation confirming a signed settlement consisting of the alleged terms of the agreement. The Tribunal directed the applicant to file a written settlement containing the terms of the agreement which the applicant alleges were contravened. The applicant was also required to file written submissions with respect to whether or not the Tribunal had jurisdiction over the Application given the issues of potential untimeliness and absence of a written agreement. The respondent was given the opportunity to file reply submissions.
5The applicant maintains that, in a meeting with the respondent’s representative where the parties agreed upon the settlement, she was promised a permanent position and that this part of the settlement was not fulfilled. The applicant, therefore, believes the respondent has breached the settlement reached between the parties.
6The respondent asks that the Tribunal dismiss the Application because there was never an agreement to offer the applicant permanent employment.
DECISION
7For the reasons that follow, I find that the Tribunal does not have jurisdiction over the Application because the applicant has failed to establish, as required by section 45.9 of the Code, the existence of a settlement signed by the parties containing the alleged contravened provision.
8Section 45.9 provides as follows:
45.9 (3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series. (emphasis added)
9Rule 24 of the Tribunal’s Rules of Procedure states that an Application for Contravention of Settlement must include a copy of the settlement alleged to have been contravened. While the applicant provided a copy of a letter of agreement between the parties, the letter does not include any specific term or provision regarding a permanent position for the applicant at the alleged rate of pay claimed by the applicant.
10I find that this Application is outside of the Tribunal’s jurisdiction because the applicant has failed to file any settlement signed by the parties including a term that the applicant alleges was breached by the respondent. It appears that the terms of the agreement which the applicant claims have been contravened were alleged verbal assurances given by a representative of the respondent.
11It is not sufficient for the purposes of filing an application under section 45.9 of the Code, that the applicant merely allege that the parties verbally agreed to something. Pursuant to section 45.9, in order for the Tribunal to have jurisdiction over a contravention of settlement application, the agreed-upon terms must be contained in a written settlement. In present case, the applicant appears to be alleging that, in addition to written terms, the parties also verbally agreed to some conditions of settlement. The fact that there is a signed agreement does not give the Tribunal jurisdiction to enforce alleged unwritten terms.
12The Tribunal cannot construe the written provisions of a settlement to include the oral conditions as alleged by the applicant. As stated in Ihasz v. Ontario (Revenue), 2011 HRTO 1991, a party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parol evidence rule, cannot be considered when interpreting the meaning of the words of the contract. The Tribunal cannot inject the parties’ alleged verbal assurances and understandings into the written word of the agreement.
13The January 21, 2011 letter appended by the applicant to this Application did not document or contain any of the alleged aspects of the agreement as claimed by the applicant. As such, the applicant has failed to establish that there was a signed settlement between the parties agreeing to the terms which the applicant claims were contravened.
14In the absence of a signed settlement containing an agreement between the parties over the matters alleged by the applicant, the Tribunal does not have jurisdiction to deal with this Application.
15In conclusion, the Tribunal does not have jurisdiction over the Application because the requirements of section 45.9 of the Code have not been satisfied.
16Accordingly, the Application is dismissed.
Dated at Toronto, this 1st day of March, 2012.
”signed by”
Ena Chadha
Vice-chair